2018602 (Refugee)

2018602 (Refugee) [2022] AATA 4959 (22 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2018602

COUNTRY OF REFERENCE: Afghanistan
MEMBER:Shahyar Roushan
DATE:22 November 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 22 November 2022 at 12:21pm
CATCHWORDS
REFUFEE – protection visa – Afghanistan – Federal Circuit Court remittal – imputed political opinion – family links to the former government – particular social group – divorced men in Afghanistan – perceived Western affiliation – Taliban takeover of the country – state protection – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
BACKGROUND

This is an application for review of a decision made by a delegate of the Minister for Immigration and Citizenship on 16 March 2016 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is [an age]-year-old national of Afghanistan. He was born in [District 1], Kabul Province, Afghanistan. He resided at a single address in [District 1] with his parents and [family members] until 2007 when he married [Ms A], an Australian citizen. Following their marriage, the applicant and [Ms A] moved to [a named location] in Kabul city.
After completing his secondary schooling, the applicant attended [University 1] and obtained a degree in [Subject 1] in 2008. He then worked as [an occupation 1] in [Agency 1] for a period of nine months. The position was sponsored by [NGO 1].
On 9 December 2009, the applicant applied for a Partner visa on the basis of his relationship with [Ms A]. On 6 January 2010, he was granted a Partner (Class UF) (Subclass 309) and he arrived in Australia [in] January 2010.
On 29 September 2012, the applicant’s application for Partner visa (Subclass 100) was refused by the Department due to a relationship breakdown between the applicant and [Ms A]. The applicant and [Ms A] were divorced [in] June 2013.On 21 May 2014, the then Migration Review Tribunal affirmed the Department’s decision and [in] May 2015, the Minister decided not to consider the applicant’s request for Ministerial intervention.
On 24 June 2015, the applicant lodged an application for Protection visa, which was refused by a delegate of the Minister on 16 March 2016. On 7 April 2016, the applicant applied for a review of the delegate’s decision.
[In] January 2018, the applicant married [Ms B]. Their daughter was born on [date]. [Ms B] also has [children] from a previous relationship.
On 5 June 2019, a differently constituted Tribunal (the first Tribunal) affirmed the delegate’s decision.
[In] July 2019, the applicant applied to the then Federal Circuit Court of Australia for a review of the first Tribunal’s decision and [in] December 2020, the Court remitted the matter to the Tribunal by consent to be determined according to the law.
The matter was considered by the presently constituted Tribunal (the Tribunal) pursuant to the order of the Court.
Claims and Evidence
Protection visa application
The applicant made the following claims in a Statutory Declaration accompanying his Protection visa application, dated 22 June 2015.
He married [Ms A] in Afghanistan [in] October 2007, and they lived together in Kabul for 13 months following their marriage. During this time, he received many threats as his wife was perceived to be ‘a Western lady’. They did not feel safe, and his wife decided to return to Australia in November 2008. He followed suit after obtaining his Partner visa. In Australia, he lived with [Ms A] at her parents’ house, where he was ‘disrespected’ and physically, psychologically and emotionally abused. He and [Ms A] separated ‘due to the violence’ and he applied to remain in Australia permanently on the basis that he had suffered family violence.
As a result of his subsequent divorce from [Ms A], he and members of his family are at risk of harm. He fears being subjected to ‘significant community ostracism’ on the basis of his ‘family problem and divorce’. He fears being ‘isolated and deemed as a foreigner and subjected to pride killing and kidnapping and what not’.
His relatives and extended family members fought against the Soviet Union forces and are ‘the biggest commanders in the area’. They are protective of their culture and values and would not hesitate to harm anyone who offends these values. The authorities would be unable to protect him, and he would be unable to relocate because ‘Afghan community do not like outside people’.
In support of his Protection visa application, the applicant submitted a copy of an undated letter issued by [a District 1] Police and intelligence Manager, essentially stating that the police would not be able to offer the applicant protection in Afghanistan. He also submitted a copy of a letter authored by his father in support of his claims, noting that divorcees are not accepted within the Afghan community. In addition, the applicant submitted letters of support from friends in Australia and country information relating to the security and human rights situation in Afghanistan at that time.
The interview
The applicant attended an interview with the Department on 27 October 2015. Where relevant, the applicant’s oral evidence at the interview is referred to in the Tribunal’s analysis below.
The delegate’s decision
The delegate did not accept that the applicant would be targeted in Afghanistan for having been married to a ‘Western woman’ or for being perceived to be pro-Western or an ‘outsider’. The delegate found that the applicant has a well-connected network and family presence in Kabul and that he would be able to re-integrate back into life in Afghanistan. Whilst the delegate accepted that the applicant is a member of the particular social group of ‘divorced men in Afghanistan’, he did not accept that the applicant had received threats from tribal leaders or the Taliban. The delegate was not satisfied that the applicant faces a real chance of persecution or a real risk of significant harm for the reasons he had provided.
The review application
On 7 April 2016, the applicant applied for a review of the delegate’s decision.
On 8 April 2016, the applicant submitted a statutory declaration to the Tribunal, dated 7 April 2016. In his statutory declaration, the applicant stated that he comes from a high-profile family in Afghanistan and that like other family members he will be targeted by the Taliban. His [Relative A] is [name], who has been subject of attacks by the Taliban and the Islamic State. As a result of this familial relationship, he will be easily identified by the Taliban. In addition, other Afghans will see him as a ‘Westerner’ and an outsider due to his lengthy residence in Australia and having been previously married to a Western woman. His culture does not accept divorcees or those who have lived outside of Afghanistan for a long period. He has been warned by Afghan police and his [Relative A] not to return as he will be a target. His father has told him that he will be putting other family members at risk if he were to return to Afghanistan.
The applicant stated that the family’s house in Afghanistan was hit by [missiles] and the Taliban claimed responsibility for the act. He has been informed by his father and brothers that people have been enquiring about him. He believes if he were to return to Afghanistan, people will become aware, and his life will be at risk. He further stated that he has lost the support of some family members, including his [Relative A], due to his divorce from [Ms A]. He is viewed as ‘a divorced Westerner who has lived in Australia for six years and that he is a spy working for the Australian government’. His ex-wife, a distant relative, has convinced the elders that the divorce was due to him leaving and everyone in the family blames and hates him. She has taken a restraining order against him, and this brings shame to his family. His family hates divorced men and women and he fears being killed by members of his family to ‘save their pride’.
On 3 April 2019, the applicant submitted a letter from his wife, [Ms B], stating that the Department of Foreign Affairs and Trade has advised that no one should travel to Afghanistan. She further stated that she requires the support from her husband to look after her children and that her children deserve to have their father in their life.
The first hearing
The applicant appeared before the first Tribunal and presented oral evidence at a hearing held on 18 April 2019 (the first hearing). Where relevant, the applicant’s oral evidence at that hearing is referred to below.
First Tribunal’s decision
On 5 June 2019, the first Tribunal affirmed the delegate’s decision to refuse the Protection visa application. The first Tribunal rejected the applicant’s claims that he has been subjected to domestic violence at the hands of his ex-wife or members of her family and did not accept that he faces a real chance of serious harm or a real risk of significant harm in Afghanistan for the reasons he had provided.
Judicial review
[In] December 2020, the then Federal Circuit Court of Australia remitted the matter to the Tribunal by consent after the Minister conceded that the first Tribunal erred in failing to consider an integer of a claim raised by the applicant, namely whether the applicant would face a real chance of serious harm or a real risk of significant harm from the Taliban and/or ISIS. The Tribunal failed to consider a claim raised by the applicant, namely, that he would face harm on account of his physical proximity to his [Relative A].
The second hearing
On 22 July 2022, the applicant submitted a statement responding to the first Tribunal’s reasons for affirming the delegate’s decision and provided the following additional information.
The current Afghanistan government follows the Sunni Hanafi school of Islam, also known as ‘Talibanism’. He identifies simply as a Muslim who follows Islam and not as a Sunni Muslim or a Hanafi follower. As he holds a different religious belief, he would not be able to practice his religion freely and would be targeted and forced to renounce his religious beliefs to avoid being killed or being persecuted. He holds [a specified] degree from [University 1], which allows him to [conduct specified duties]. As a result, he may be viewed as a religious scholar and targeted for persecution.
He comes from a well-known family who supported the previous Afghan government. He is opposed to and does not agree with or support the Taliban. His [Relative A], [named], is a former [prominent official] who openly opposes the Taliban by preaching against their government and encouraging resistance. His [Relative A] also [worked with] the resistance against the Taliban Government from 1996 to 2001. Due to their familial affiliation with his [Relative A], his family in Afghanistan have been drawing negative attention which increases the threat of him being targeted. People in the community will be forced to inform the Taliban on his family members’ whereabouts due to fear. In addition, his connection to the former Afghan government and Western countries increases his risk of persecution.
The applicant was ‘directly involved’ with Afghanistan [Agency 2] as ‘an informer’ in [a named district]. Between 2007-2010, he reported terrorist activities to the [District] police Colonel [named]. He also worked as [an occupation 1] in [Agency 1] and this position was sponsored by [NGO 1]. The Taliban is targeting all those previously involved with the former government and that he is at risk of being attacked, threatened, intimidated abducted and killed due to his involvement with the former government.
Furthermore, his brother was employed by [Agency 2] [in a role in] security and his [Relative B], who was [a leader] of [Agency 2] has now fled Afghanistan.
In support of his statement, the applicant submitted evidence in relation to his employment as [an occupation 1] in the former [Agency 1] and his brother’s employment in [Agency 2]. He also submitted a psychological report, dated 17 March 2022, stating that he suffers from elevated levels of distress, flashbacks, nightmares and panic attacks due to the uncertainty of his Protection visa application and the current situation in Afghanistan.
The applicant appeared before the Tribunal on 29 August 2022 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms B]. Where relevant, this evidence is referred to in the Tribunal’s analysis below.
CONSIDERATION OF Claims and evidence
The relevant law
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Analysis, reasons and findings
For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
In June 2019, as noted earlier, the first Tribunal rejected the applicant’s claims in relation to domestic violence, being divorced and Westernised are lacking plausibility and documentary evidence. The first Tribunal, however, did not consider the applicant’s claims in relation his fear of the Taliban and/or ISIS and claims raised by him regarding his fear of harm based on his relationship with his [Relative A].
Since then, the political and security landscape in Afghanistan has significantly changed as a consequence of the Taliban takeover of the country in August 2021. On the basis of the applicant’s previously uncontentious family profile and characteristics, these changes are also likely to have a significant adverse impact on the applicant if he were to be removed to Afghanistan.
The applicant has consistently claimed, and the Tribunal accepts, that he graduated from [University 1] in 2008 with a degree in [Subject 1]. On the basis of the documentary evidence submitted by the applicant, the Tribunal further accept that following the completion of his degree, he was accepted into and completed [a scholarship] Program in 2009. The Program was sponsored and funded by [NGO 1]. During the course of the [scholarship], the applicant worked as [an occupation 1] in [Agency 1].
The Tribunal accepts that the applicant’s family, both immediate and extended, includes prominent former politicians, diplomats and former government employees with close ties to the former Afghan government.
The Tribunal accepts that [name] is the applicant’s [Relative A]. He is a former [politician] and [prominent official].[1] [Details deleted.][2] Following the fall of the Ashraf Ghani government and the takeover of Kabul by the Taliban in August 2021, [this Relative A] fled to [Country 1][3]
[1] [Deleted].
[2] Ibid.
[3] [Deleted].
The Tribunal accepts that one of the applicant’s [relatives] is [Relative C], who was appointed as [an international representative] of [Afghanistan].[4] He remains in his post as many Afghan embassies continue to offer consular services for Afghans abroad and foreigners seeking to travel to Afghanistan despite running out of funds.[5] According to a March 22 report by France24, ‘none of the country's 60 or so ambassadors, consuls or heads of diplomatic missions who were appointed by former president Ashraf Ghani have agreed to serve the hardline Islamist group since it seized power in August last year.’[6] The Tribunal also accepts the applicant’s evidence at the hearing that one of his [relatives], [named], is a diplomat, posted to the [specified mission] by the previous government.
[4] [Deleted].
[5] Siddique, A, Afghanistan's Embassies Remain In Limbo As Most Staff Still Loyal To Toppled Government, 17 January 2022, Afghanistan's Embassies Remain In Limbo As Most Staff Still Loyal To Toppled Government (rferl.org).
[6] Afghan diplomats under pressure from Taliban regime, France24, 14 March 2022,
Finally, the Tribunal accepts that the one of the applicant’s other [relatives], [Relative B], served as [a leader] of [Agency 2] in [District 1] and that the applicant’s [relative], [Relative D], worked as an [officer] at the same agency. The Tribunal accepts that [Relative B] had fled to [Country 2] after the Taliban takeover of Afghanistan and that [another relative] is in hiding, alongside other family members in Afghanistan.
In a Thematic Report on Political and Security Developments in Afghanistan, DFAT reported that after coming to power in mid-August 2021, the Taliban offered an amnesty to all Afghans, including those who had worked for the previous government. The amnesty, however, has been unevenly respected, with much of the violence following the takeover being the result of local score-settling, as well as targeted killings. The report further stated:
The Taliban have targeted Afghans of all ethnicities working for, supporting, or associated with the government and/or the international community. This includes, but is not limited to, government employees, judges and prosecutors, judicial workers, police, Afghan and international security force personnel, and interpreters…Despite the amnesty, since August 2021 there are signs that some Taliban forces are actively targeting members of the Afghanistan Government’s security forces, particularly those adjudged to be impossible to recruit to the Taliban’s cause: namely former Special Forces soldiers and members of the National Directorate of Security (NDS), along with those who specifically aided foreign forces. Sources variously report four members of the NDS were hunted, tortured and killed in September 2021…[7]
[7] DFAT, Thematic Report on Political and Security Developments in Afghanistan (August 2021 to January 2022, January 2022) January 2022.

In August 2022, the European Union Agency for Asylum (EUAA), citing a number of sources, also reported that the amnesty was not systematically enforced nor fully respected by the Taliban, underscored by rise in targeted killings of military and civilian former government [personnel].[8] Consistently with the applicant’s claims regarding members of his family, EUAA reported that former government and security officials, judges, local politicians and community leaders were forced into hiding because of ‘specific, targeted, personalised threats’.[9]
[8] EUAA, Afghanistan – Targeting of Individuals, Country of Origin Information Report, August 2022.
[9] Ibid.
The sources consulted by the Tribunal also refer to Taliban targeting family members of persons affiliated with security institutions of the former government and government personnel. The EUAA, for example, cited credible reports by OHCHR and UNAMA in March 2022, demonstrating figures of the killing of more than 130 former ANDSF members, government personnel and their family members. EUAA also referred to reports of family members of former [security agencies’] employees being interrogated about their relative’s whereabouts.[10] According to Human Rights Watch, the Taliban have also searched for known former security force members, often threatening and abusing family members to reveal the whereabouts of those in hiding.[11]
[10] Ibid.
[11] Human Rights Watch, No Forgiveness for People Like You, Executions and Enforced Disappearances in Afghanistan under the Taliban, 30 November 2021, afghanistan1121_reportcover_8.5x11 (hrw.org).
In a March 2022 report, Human Rights Watch noted that the Taliban control systems holding sensitive biometric data that Western donor governments left behind in Afghanistan in August 2021, putting thousands of Afghans at risk. This information included additional details on where individuals live, their height, eye colour, immediate and extended family members’ names and personal details.[12]
[12] Human Rights Watch, New Evidence that Biometric Data Systems Imperil Afghans, 30 March 2022, New Evidence that Biometric Data Systems Imperil Afghans | Human Rights Watch (hrw.org).
On the basis of the above information, the Tribunal finds that if the applicant were to return to Afghanistan, there is a real chance that he will be identified as a family member of his [Relative D], and [Relative B], who were both employees of [Agency 2], with latter being a high-ranking official. There is also a real chance that he will be identified as a family member of his [Relative A], [named], as well as his [Relative C]. The Tribunal finds that there is a real chance that the applicant’s family ties will expose him to adverse treatment at the hands of the Taliban.
In reaching this view, the Tribunal has taken into account the applicant’s evidence at the hearing that he is opposed to the Taliban and their version of Islamic jurisprudence, including their views and practices in relation to women and violence. The applicant is highly educated, having obtained tertiary qualifications in [Subject 1], and the Tribunal found his oral evidence in this regard persuasive. In view of the applicant’s personal and family profile, the Tribunal accepts that if he was not fearful of retribution, he would seek to express his criticism of and opposition to the Taliban. The sources consulted by the Tribunal suggest that the Taliban authorities have arrested and detained individuals who have made peaceful expressions of opinion or dissent.[13] Civil society actors, including activists, journalists, members of academia have all been reportedly subjected to killings, enforced disappearances, incommunicado detentions, attacks, harassment, threats and arrests. The ‘well-educated class and members of the intelligentsia’ have also been targeted.[14]
[13] UN Human Rights Council, Situation of human rights in Afghanistan, 4 March 2022, Situation of human rights in Afghanistan - Report of the United Nations High Commissioner for Human Rights (A/HRC/49/24) (Advance Unedited Version) - Afghanistan | ReliefWeb.
[14] EUAA, note 8, above.
Having carefully considered the evidence before it, the Tribunal finds that if the applicant were to be removed to Afghanistan, there is a real chance that he will be subjected to threats to his life or liberty, significant physical harassment and significant physical ill treatment at the hands of the Taliban who are now governing Afghanistan. The Tribunal is satisfied that such treatment amounts to serious harm under s 5J(4)(b) of the Act. The Tribunal finds that the essential and significant reasons for the persecution feared by the applicant are his membership of the particular social group of his family and his political opinion. As the applicant fears harm by the Afghan authorities, the Tribunal finds that effective state protection against the harm he fears is not available to him. The Tribunal is satisfied that the real chance of persecution relates to all areas of Afghanistan. The Tribunal finds that the applicant has a well-founded fear of persecution in Afghanistan. The Tribunal is, therefore, satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
As the Tribunal has found that the applicant has a well-founded fear of persecution for the reasons provided, the Tribunal does not consider it necessary to assess other protection claims arising from his evidence.
decision
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Shahyar Roushan
Senior Member
Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 4959

22 November 2022

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Remedies

Standing